BBE15 v Minister for Immigration
[2016] FCCA 2281
•2 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2281 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal). |
| Legislation: Constitution of the Commonwealth of Australia, s.75(v) Migration Act 1958 (Cth), ss.65, 474, 476 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389 |
| Applicant: | BBE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 543 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 30 May 2016 |
| Date of Last Submission: | 30 May 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 2 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Sparke Helmore |
| Solicitors for the Respondents: | Hodges Legal |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in an amount to be fixed by the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 543 of 2015
| BBE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant was born in Sri Lanka on (omitted). The applicant’s ethnicity is Tamil.
The applicant arrived in Australia on (omitted). In December 2012 the applicant applied for a Protection (Class XA) Visa under section 65 of the Migration Act 1958 (Cth) (“the Act”).
On 4 September 2013 a delegate of the Minister for Immigration refused to grant a protection visa to the applicant.
On 23 September 2013 the applicant lodged an application seeking a review of the delegate’s decision. The Refugee Review Tribunal made a decision on 13 May 2015 affirming the delegate’s decision not to grant to the applicant a protection visa.
On 17 June 2015 the applicant filed an Application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. That Tribunal is now known as the Administrative Appeals Tribunal.
Jurisdiction
In essence, the applicant seeks the issue of constitutional writs.
Section 476(1) of the Migration Act 1958 (“the Act”) provides:-
“476(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.”
Section 75 of the Constitution relevantly provides:-
75. Original jurisdiction of High Court
In all matters:
…
v. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly provides:-
“474. Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”
The relevant decision of the Tribunal in this case was made on 13 May 2015 and is a privative clause decision.
However, the Court does still have jurisdiction to issue constitutional writs in relation to the Tribunal’s decision – provided the Court is satisfied that the decision made by the Tribunal is, in fact, affected by jurisdictional error.
In the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”[1]
[1] In these reasons for judgment the emphasis and the underlining has been added.
In SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at paragraph 6, in relation to the role of the Court in reviewing a decision of the Tribunal, Allsop J (as His Honour then was) stated, inter alia:-
“6. … It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error…”
On 19 May 2016 the applicant filed an Amended Application in the Federal Circuit Court of Australia and at the same time filed an Outline of Submissions and an affidavit annexing a copy of a report published by the Asylum Research Consultancy (ARC) dated 19 August 2014.
In the Amended Application filed by the applicant on 19 May 2016 the applicant seeks constitutional writs and refers to two grounds for the application. The two grounds are as follows:
“Ground 1
The tribunal committed a jurisdictional error in failing to identify or assess an integer of the applicant’s claim which was apparent from the material before the Tribunal.
Particulars as per submissions filed herewith.
Ground 2
The tribunal made a finding in respect of which there was no evidence. Alternatively, the finding incorrectly stated the evidence and thus constituted error. This error infected the Tribunal’s decision in that the Tribunal applied an incorrect test.
Particulars as per submissions filed herewith.”
As noted, the particulars of each ground are said to be included in the written submissions filed on the same date, 19 May 20164. This is not an acceptable way to present particularised grounds for review. The grounds for judicial review – fully particularised – should appear in the application itself. No objection was taken. In any event I make that comment for the benefit of the lawyers involved for future reference.
I have, in the circumstances of this case, therefore had regard not only to the Amended Application but the particulars of the grounds as provided in the written submissions also filed on 19 May 2016. I do note, however, that the grounds were further refined in oral submissions. During those oral submissions Mr Hodges, solicitor on behalf of the applicant, noted (on pages 8 and 9 of the transcript), inter alia:-
“1. The grounds overlap to some extent;
2. The first ground is that the tribunal committed error in failing to identify or assess an integer of the applicant’s claim which was apparent from the material before the tribunal. It is said that integer is that the applicant was either by himself or by his mother through her grocery business – a person who had supplied goods to the LTTE and who was at least questioned about the storage of certain goods as well. So first of all – that the applicant and/or his mother supplied goods to the LTTE and secondly, that the applicant was suspected of storing goods on behalf of the LTTE – as late as 2007.
Ground number 2 alleges that the Tribunal made a finding in respect of which there was no evidence and, alternatively, the finding incorrectly stated the evidence and, thus, constituted error and that error infected the Tribunal’s decision in that the Tribunal thereafter applied an incorrect test.”
By way of background – the Tribunal did accept that the applicant’s mother ran a grocery business in Sri Lanka. During the civil war the LTTE (Liberation Tigers of Tamil Eelam) would purchase groceries from the applicant’s mother’s business. Also, on occasions, the LTTE would visit the applicant’s mother’s grocery business and merely take groceries for themselves (without paying). Further, the applicant claimed that when he was detained in 2007 he was asked why there was such a large quantity of groceries in his house.
The Tribunal accepted (in paragraph 23 of its decision) some claims made by the applicant. That paragraph noted, inter alia:-
“23. Given the country information that many Tamils were rounded up during the civil conflict, the tribunal accepts the applicant was rounded up and detained in 2006, 2007 on suspicion of being LTTE and in 2008 because he did not have his identity card. The tribunal accepts his cousins may have been killed in 2009, his uncle killed in 2006 and that a cousin disappeared in 2008 as this was during the civil war and many people were killed and disappeared…”
One of the problems for the applicant arose because, notwithstanding the findings referred to in paragraph 23, the Tribunal noted in paragraph 22 of its decision that the applicant was not a witness of truth and that he had fabricated “most of his claims”. I note that in paragraph 22 of the decision the Tribunal stated:
“22. For reasons set out below the tribunal has found the applicant was not a witness of truth and has fabricated most of his claims. The tribunal has been mindful of the credibility guidelines in assessing the applicant’s credit. The tribunal has considered the applicant’s and agent’s explanation about his credibility. However, the applicant has added to key claims as he went through the application process and his hearing account was vague and hesitant and inconsistent and lacking in credibility. While the tribunal accepts the new claims and more detail in claims may occur throughout the application process, it does not accept that two key and lengthy detentions in 2010 would not be mentioned at the outset, even if at an entry interview. The tribunal accepts that minor things and not all claims may be mentioned but these were key detentions and the most recent and for a significant period of time. The tribunal does not accept the applicant was not aware of the importance of the entry interview and did not pay too much attention. The tribunal considers this is the first interview and the applicant has left Sri Lanka because of claimed fear of harm. The tribunal does not accept that he would not mention the most recent detentions at that point. The tribunal accepts applicants may be unnerved and anxious and intimidated and so may not recall minor or periphery issues but it does not accept that he would not mention these key events. They were not minor or periphery. Further, he did not mention any political involvement and answered in the negative to any political involvement, which was contrary to his later claims of political involvement. As well he did not mention political involvement in his statement of claims. The tribunal does not accept his failure to mention his politics was because he did not have documentation at this was the case for some of his other claims but he did not fail to mention those in the statement. Further, the tribunal does not accept the mention of his 2010 release with the assistance of a politician means he has been consistent. Rather, given that mention it is at odds that he would not also take the opportunity to refer to his claimed political involvement. The tribunal does not accept these explanations. The tribunal accepts that minor inconsistencies occur in truthful accounts, however the added claims and inconsistencies were not minor. The tribunal does not accept the applicant gave a largely consistent account of his experiences.” [2]
[2] Underlining and emphasis has been added.
The report from the Asylum Research Consultancy annexed to the affidavit filed on behalf of the applicant on 19 May 2016 was in fact referred to in footnote number nine – a footnote which was referred to in paragraph 74 of the Tribunal’s decision. That paragraph states:-
“74. The Tribunal accepts there is some evidence that some Sri Lankan Tamils returnees have reportedly suffered torture and abuse from the authorities. However, the cases in relation to returnees overwhelmingly involve returnees who have had some reasonably substantial form of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections on persons with a political or other profile substantially different to that of the present applicant 9.
…
9 UNHCR Refworld, Asylum Research Consultancy (ARC).”
Paragraph 74 of the Tribunal’s decision notes that the Sri Lankan Tamil Returnees who have encountered problems (in particular torture and abuse from the authorities) have been those who had, “some reasonably substantial form of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections (or) persons with a political or other profile substantially different to the present applicant”. It was, however, stated in submissions on behalf of the applicant that the Asylum Research Consultancy Report in fact makes two references (one at page 11 and one at page 19) in the following terms:-
“… our evidence demonstrates that people of Tamil ethnicity with even minimal or even suspected links to the LTTE have been detained and tortured and that these practices continue in the post-conflict period.”
It is argued on behalf of the applicant that, because he and/or his mother and/or his family, are connected with or owned, the grocery business and noting that the LTTE would purchase groceries from the grocery business and/or take groceries for themselves (during the conflict) from the business and noting further that it is said that the authorities suspected the applicant and/or his mother of storing groceries on behalf of the LTTE – that therefore the Tribunal fell into jurisdictional error by failing to specifically address these particular points in the light of the country information stating that – the evidence of the Asylum Research Consultancy (the relevant report) demonstrated that people of Tamil ethnicity, “with even minimal or suspect links to the LTTE have been detained and tortured…” It was submitted on behalf of the applicant that a person (such as the applicant) who had been detained, questioned and/or suspected of storing or providing groceries to the LTTE would be a person at risk of harm from the authorities should he return to Sri Lanka. This submission on behalf of the applicant is also made in the light of the fact that the Tribunal appeared to accept a particular paragraph appearing at page 55 of the Court Book. That paragraph is contained in a statutory declaration sworn by the applicant. The paragraph states:-
“In 2007, the police and the CID were checking homes and rounding up Tamil males they suspected of being supporters of the LTTE. My family had all gone to church, I had remained at home. The authorities came into my home and saw all of the groceries in my house. They detained me and took me to the police office. In the police office they questioned me about why I was at my home on my own, where the rest of the family was and why there was such a large quantity of groceries. They wanted to know who we were helping by storing these groceries. They interviewed me for four days. During the period of my detainment I was physically assaulted. My mother came to the police office and spoke with the officers. After she spoke with them I was released.”
It is submitted on behalf of the first respondent that, in order for the applicant to establish jurisdictional error on this ground the applicant must show that the claim or a relevant part of the claim was made expressly or that the claim arose clearly from the circumstances. I note what was stated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at paragraph 68 per Black CJ, French and Selway JJ:-
“68. Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”
I also note what was stated by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389 at 24:-
“[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice…”
What is apparent, therefore, from the decisions in Dranichnikov (supra) and NABE (supra) is that an applicant needs to make a “…substantial, clearly articulated argument relying upon established facts”.
I do not consider that the applicant has made a substantial clearly articulated claim that he had a profile of a person suspected of links with the LTTE as a result of the supply and storage of groceries for the LTTE – or on the basis of having family links with any such persons.
The claims made by the applicant which are relevant to this question appear at page 55 of the Court Book (exhibit 1 in these proceedings). In the second paragraph of page 55 of the Court Book it was stated:-
“From 2005 until 2007 I had a small grocery business that my mother operated from my home. The LTTE would sometimes buy groceries from my mother. They would tell my mother that they would pay her later however they would never pay her.”
In addition, the applicant (as noted earlier herein) made the following claim in the second last paragraph on page 55 of the Court Book:-
“In 2007, the police and the CID were checking homes and rounding up Tamil males they suspected of being supporters of the LTTE. My family had all gone to church, I had remained at home. The authorities came into my home and saw all of the groceries in my house. They detained me and took me to the police office. In the police office they questioned me about why I was at my home on my own, where the rest of the family was and why there was such a large quantity of groceries. They wanted to know who we were helping by storing these groceries. They interviewed me for four days. During the period of my detainment I was physically assaulted. My mother came to the police office and spoke with the officers. After she spoke with them I was released.”
These two quotations from page 55 of the Court Book have to be read in the light of page 118 of the Court Book where it was noted that, at an interview before the delegate – when asked whether his family had been forced to provide help to the LTTE the applicant “did not note that they did, but said that they celebrated Heroes Day”.
In any event, even if it could be said that the claim as pressed now on behalf of the applicant was made at an appropriate time and in an appropriate manner (i.e. it was a substantial, clearly articulated argument relying upon established facts) – the Tribunal has dealt with such a claim by making a finding of greater generality which subsumed the claim which is pressed on behalf of the applicant. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 184 at 47 French (as His Honour then was), Sackville and Hely JJ stated at paragraph 47:-
“[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The Tribunal made the following general findings, inter alia:-
“50. The applicant also travelled to India on his own passport through Colombo airport in 2012 just before leaving for Australia and returned to Sri Lanka without harm. If the applicant was of interest to authorities the tribunal considers he would have been stopped or arrested. The applicant said his travel was facilitated by an agent. The agent submitted the Karuna group may not detect people at the airport, but can located beyond the airport and country information is bribery is not uncommon. The applicant said he knew someone who used another passport seven times through the airport. The agent submitted this indicated the ease of manipulating airport security. While the tribunal accepts that airport security cannot be 100% as it also relies on detection of every false document as well as no corruption, the tribunal prefers the more recent and reliable country information from UK Upper Tribunal about stop and watch lists at the airport for LTTE or wanted persons that unsubstantiated newspaper reports. The tribunal has considered the agent submissions but it does not accept he bribed or avoided detection through the airport as the tribunal considers the applicant is not a witness of truth.
…
58. While the tribunal accepts on the basis of country information that the applicant was detained on round ups during the war, the tribunal does not accept the applicant was after this or that he was detained, questioned, interrogated, beaten or assaulted in 2010 or thereafter. While the tribunal accepts some of his extended family have been killed or disappeared during the war, the tribunal does not accept that raises his profile or that he is of interest or suspected of being LTTE or anti-government. The tribunal does not accept he is political supporter or campaigner for the TNA or that leaders secured his released in 2010. The tribunal does not accept that he is suspect of or perceived to be LTTE or anti-government or human rights activist or political dissident now or in the future. The tribunal does not accept he is wanted by or faces harm from authorities, paramilitary or Karuna or his men, on any list or faces any real chance of abduction or harm in the foreseeable future.
…
68. The tribunal accepts that persons with LTTE associations may be at risk of harm upon return to Sri Lanka. However as discussed above the tribunal has not accepted that the applicant is suspected LTTE, anti-government. Even accepting his detention round ups and his extended family LTTE associations the tribunal does not accept he faces any chance of harm or being perceived as LTTE or of interest to authorities. Country information in UK upper tribunal decision suggests the authorities approach is based on sophisticated intelligence as to activities in Sri Lanka and they know many Tamils travel abroad as economic migrants and that everyone in LTTE controlled areas had some contact with the LTTE during the war. Rather in the post conflict environment, authorities are interested in individuals perceived to be a threat to the integrity of Sri Lanka as a single state because they have perceived to have a significant role in relation to post conflict Tamil separatism or renewal of hostilities. In the post conflict environment an individual’s past history will be relevant only to the extent that it is perceived by authorities as indicating a present risk to the unitary state. The tribunal accepts that person with such a profile are at risk of harm upon return to Sri Lanka.
69. The tribunal has not accepted the applicant was detained by authorities or Karuna or anyone in 2010 or thereafter or that anyone is looking for him or he is of interest. He has lived and worked in the same area for many years since the end of the war without harm. The tribunal has accepted his cousins or uncle either disappeared or were killed and the applicant was rounded up, questioned and detained in the past during the war, but as discussed above it does not accept that it is of interest now or in the future as that was in the context of the civil war. If they had suspected him of LTTE he would have been rounded up and sent to rehabilitation camp towards the end of the war, but he was not. Further, the tribunal has found he has lived and worked in the same area without harm.”
The Tribunal has appropriately considered the UNHCR Guidelines. I note paragraph 63 of the Tribunal’s decision. But I also note the findings made by the Tribunal in paragraph 50 (where it was noted that the applicant was able to travel on his own passport through Colombo airport in 2012 to India and return to Sri Lanka without harm); and paragraph 58 where the Tribunal made a general and broad ranging finding that the Tribunal did “not accept that (the applicant) is suspected of or perceived to be LTTE or anti-government or human rights activist or a political dissident now or in the future”. Further, I note that the Tribunal did not accept that the applicant is “wanted by or faces harm by authorities…”.
I also note that in paragraph 69 (quoted above) the Tribunal concluded that certain things occurred, “in the context of a war”. Furthermore, I note from paragraph 81 of the Tribunal’s decision:-
“81. The tribunal has considered his circumstances but it does not accept the applicant will be imputed with or perceived as LTTE connections or anti-government sentiment, or reviving the conflict or is of any adverse interest to authorities and therefore not within a risk profile.”
The findings made by the Tribunal are general findings. I have concluded that those general findings do subsume the claims made by the applicant relating to the fact that he will be of interest to the authorities because of the issue relating to the provision or storage of groceries for the LTTE. The general findings referred to subsume the matters raised by the applicant in ground 1.
Those aspects of the claim made by the applicant were appropriately dealt with by the Tribunal. Ground number 1 must be dismissed.
Ground Number 2
Ground number 2 is written out in some detail in the applicant’s outline of submissions filed on 19 May 2016 and states as follows:-
“Ground 2
26 The Tribunal made a finding in respect of which there was no evidence. Alternatively, the finding incorrectly stated the evidence and thus constituted error. This error infected the Tribunal’s decision in that the Tribunal applied an incorrect test.
27 At [CB307, paragraph 74] the Tribunal accepted that there is evidence that some Tamil returnees have reportedly suffered torture and abuse from the authorities. The Tribunal asserts that these reports involve returnees who have some “reasonably substantial” form of connection with the LTTE. The Tribunal cited a UNHCR article Refworld (footnote 9) for this assertion (the article)
28 Contrary to the assertion of the Tribunal, the article did not state that only returnees with some “reasonably substantial” form of connection with the LTTE were tortured and abused. The article cites, apparently with approval, a report to the following effect:
“Instead, our evidence demonstrates the people of Tamil ethnicity with even minimal or merely suspected links to the LTTE have been detained and tortured and these practices continue in the post conflict period”.
29. This error by the Tribunal led to it applying the test that a “reasonably substantial form of connection with the LTTE or who are suspected of such linkages…”. The correct test based on the article is “even minimal or even suspected links”.”
This particular “ground” is contained in the applicant’s submissions relating to the ground. As indicated earlier in these reasons for judgment it is not an appropriate way to present particulars in this type of application.
In any event – I note that in this ground the applicant maintains that the Tribunal’s use of the term “reasonably substantial” utilised an incorrect test. The article in question was prepared by the Asylum Research Consultancy. It is entitled “Sri Lanka COI Query Response”. The applicant has drawn the Court’s attention to page 11 of the article where (as noted from the above quotation) it states:-
“Instead, our evidence demonstrates that people of Tamil ethnicity with even minimal or merely suspected links to the LTTE have been detained and tortured and these practices continued in the post conflict period.”
In fact, the article collates or draws together various items of research.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at paragraphs 11-13 it is stated:-
“11. The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
12. The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
13. In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
NAHI (supra) is therefore authority for the proposition that the assessment and weight to be given to the country information is a matter for the Tribunal (note especially paragraph 11 in NAHI (supra)). It was submitted to the Court by the first respondent that page 2 of the article in question makes it clear that the country information included in the article, “is illustrative, but not exhaustive of the information available in the public domain, nor is it determinative of any individual human rights or asylum claim.”
I note the submission in paragraph 41 of the first respondent’s written submissions filed 25 May 2016 wherein it is stated:-
“41. Specifically, the article referred to (from pages 4 to 10) information on Tamils who returned to Sri Lanka and were subjected to detention and/or torture and/or ill-treatment. These reports however related to returnees who:
41.1 Were accused or perceived as being members of the LTTE (page 5[B]) and 10[M]).
41.2 Were former LTTE leaders (page 5-6[C]).
41.3 Maintained a close relationship with the LTTE international financial network (page 6[D]).
41.4 Was a deputy leader of the LTTE (page 7[F]).
41.5 Had delivered parcels for the LTTE (paged 9[J]).
41.6 Or whose profile was otherwise unknown.”
It must be said that the Tribunal concluded that the profile of the applicant was not such that he would come within any of the categories outlined in the article and (summarised in paragraph 41 of the submissions of the first respondent).
Indeed this ground (number 2) and the submission of the applicant related to this ground is quite intertwined with ground number 1. This was, essentially, noted by Mr Hodges, the solicitor who appeared for the applicant. My earlier comments in these reasons for judgment in paragraphs 33, 34 and 35 are relevant. The Tribunal made a general finding that it did not accept that the applicant is suspected of or would be perceived to be LTTE or anti-government or a human rights activist or a political dissident now or in the future. I note paragraph 58 of the Tribunal’s decision (and paragraph 33 of these reasons for judgment). In those circumstances and having regard to paragraph 41 of the first respondent’s written submissions – I have come to the conclusion that the Tribunal’s finding at paragraph 74 was indeed open to it. The Tribunal found that the applicant did not have a profile whereby he would be suspected or perceived to be LTTE or anti-government. The Tribunal was entitled to give such weight to country information as it sees fit. The Tribunal did consider the country information now pressed by the applicant. Given all of these reasons for judgment and my conclusion that the Tribunal’s finding at paragraph 74 was open to it – it follows that no jurisdictional error has been demonstrated by reference to ground number 2.
Conclusion
The application must be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 2 September 2016
3